Shashi Prasad Yadav v. The State Of Bihar

was affirmed. The petitioner thereafter filed a memorial and that, too, was rejected by the Director General-cum-Inspector 5 General of Police, respondent no.2

#7. Learned counsel for the petitioner submits that during the enquiry, petitioner was not given the opportunity to defend his case, as no notice was ever served on him by the Enquiry Officer. So all the witnesses who were examined during the enquiry were ex parte. It has further been submitted that the enquiry report which was required to be served on the petitioner has not been served which is apparent from letter of Superintendent of Police, Muzaffarpur dated 22nd May 1996 (Annexure-9 to the writ petition).

#8. From the narration of facts mentioned in the said letter it is amply clear that the copy of the enquiry report was not served upon the petitioner which is in violation of natural justice. It has further been argued that the non-service of enquiry report to the petitioner is in complete violation of natural justice as the petitioner could not get a chance to give explanation on findings of the Enquiry Officer.

#9. Learned counsel for the State has refuted the aforesaid submissions and submitted that the petitioner was given full opportunity and it is the petitioner who did not avail the opportunity and with regard to the service of enquiry report 6 it has been submitted by the learned counsel for the State that the petitioner could not show any prejudice caused to him due to non-service of enquiry report. It has further been submitted that now service report will not make departmental enquiry illegal unless it shows that prejudice was caused to the petitioner due to non-service of enquiry report. It was further contended that petitioner cannot challenge the enquiry proceeding or report in view of the fact that the petitioner himself failed to participate in the enquiry.

#10. Having considered the submissions of both the parties, it is clear that the enquiry was ex parte and this Court had directed the State counsel to produce the original records of the case but unfortunately the records are not available and the same could not be produced.

#11. In such circumstance, it is very difficult for this Court to find out whether notice was served upon the petitioner or not. The fact remains that it is an undisputed fact which cannot be denied by the petitioner that he remained absent for the period in question, save and except the explanation given for being absent due to illness. Learned counsel for the petitioner could not point out as to what prejudice has been caused to the 7 petitioner in not serving the enquiry report. The matter could have been remanded back but the fact remains that it will be useless formality to remand the case afresh from the stage of service of enquiry report, the situation will not change with regard to absence of the petitioner for the period in question. But one fact and an issue is very relevant for consideration as to whether the punishment of dismissal is proportionate to the charges leveled. The charge is of absence for a period less than one month and for that petitioner has submitted his explanation and one fact is clear from the letter of Superintendent of Police, Muzaffarpur (Annexure-9) that he had approached the Police Line and his service revolver was oiled but thereafter he ought to have reported to his place of work, but he remained absent with an explanation that he was ailing during that period. In that view of the matter, this Court is of the view that the order of punishment is not proportionate to the charges proved against the petitioner.

#12. The Hon‟ble Supreme Court like a case in hand has held that the authority which is conferred with discretionary is bound into all attending facts and circumstances of the case and while imposing punishment the 8 disciplinary authority ought to act reasonably and fairly. In the present case, petitioner was a constable and punishment of dismissal for being absent for less than one month will be very harsh and exercise of discretionary power by the Disciplinary Authority would be termed arbitrary and unreasonable. The order of punishment unreasonable and completely disproportionate to the charges proved against the petitioner. The Hon‟ble Supreme Court in the case of State of M.P. and others v. Hazarilal (2008)3 SCC 273 held as under: Para-8: An authority which is conferred with a statutory discretionary power is bound to take into consideration all the attending facts and circumstances of the case before imposing an order of punishment. While exercising such power, disciplinary authority must act reasonably and fairly. The respondent occupied the lowest rank of the cadre. He was merely a contingency peon. Continuation of his service in the department would not bring a bad name to the State. He was not convicted for any act involving moral turpitude. He was not punished for any heinous offence. 9 Para: 11 Further more, the legal parameters judicial review undergone change. Wednesbury principle of unreasonableness has been replaced by the doctrine of proportionality. Para-12: At this stage we may also notice the application of the doctrine by the United Kingdom House of Lords in Seal v. Chief Constable of South Wales Police, Huang v. Secy. Of State for the Home Deptt., Tweed v. Parades Commission for Northern Ireland”.

#13. Again in the case of Coimbatore District Central Coop. Bank v. Employees Assn. and another, 2007)4 SCC 669 Hon‟ble Supreme Court held as under: Para-19: Smith States “proportionately” involves “balancing test” and “necessity test” whereas the former (balancing test ) permits scrutiny of excessive onerous penalties or infringement of rights or interests and a manifest imbalance of relevant considerations, latter (necessity test) requires infringement of human rights to the least restrictive alternative. 10 Para-20: In Halsbury‟s Laws of England (4th Edn.), Reissue, Vol. 1 (1), pp 144-45, Para 78, it is stated : “The court will quash exercise of discretionary power in which there is no reasonable relationships between the objective which is sought to be achieved and the means used to that end, or where punishments imposed by administrative bodies or inferior courts are wholly out of proportion to the relevant misconduct. The principle of proportionality is well established in European law and will be applied by English courts where European law is enforceable in the domestic courts. The principle of proportionality is still at a stage of development in English law; lack of proportionality is not usually treated as a separate ground for review in English law, but is regarded as one indication or manifest unreasonableness. Para-21: The doctrine has its genesis in the field of administrative law. The Government is its departments, in administering the affairs of the 11 country are expected to honour their statements of policy or intention and treat the citizens with full personal consideration without abuse of discretion. There can be no „pick and choose‟, selective applicability of the Government norms or unfairness, arbitrariness or unreasonableness. It is not permissible to use a „sledgehammer to crack a nut‟. As has been said many a times ; „where paring knife suffices, battle axe is precluded.”

#14. The same view has been reiterated by the Hon‟ble Supreme Court in the Case of State of U.P. v. Sheo Shankerlal Srivastava, (2006)3 CC 276 as under : Para-22: It is now well settled that principles of law that the High Court or the Tribunal in exercise of its power of judicial review would not normally interfere with the quantum of punishment. Doctrine of proportionality can be invoked only under certain situations. It is now well settled that the High Court shall be very slow in interfering with the quantum of punishment, unless it is found to be shocking to one‟s conscience. Para-23: In V.Ramana v. A.P. SRTC this 12 Court upon referring to a large number of decisions held: (SCC p.348, para 11): “11. The common thread running through in all these decisions is that the court should not interfere with the administrator‟s decision, unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case. The court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decisions for that of the administrator. The scope of judicial review is limited to the deficiency in decision making process and not the decision.” Para:24 While saying so, we are not oblivious of the doctrine of unreasonableness is giving way to the doctrine of proportionality.”

#15. In view of the aforesaid fact and circumstances, this Court is of the view that disciplinary authority has not 13 exercised his discretionary power fairly and properly and did not consider the attending facts and circumstances of the case and the order of punishment of dismissal is completely disproportionate shocking to the conscience of this Court. Hence, the order of dismissal is quashed and the matter is remanded back to the authority concerned to pass appropriate order in accordance with law, considering the facts and circumstances of the case, including letter of Superintendent of Police, Muzaffarpur (Annexure-9 to the writ petition). The exercise of consideration should be completed within a period of three months the date of receipt/production of copy of this order as the matter is very old.

#16. Accordingly, this petition is allowed to that extent. Patna High Court, Dd .10th Jan. 2012. N.A.F.R./Jay/ (Shivaji Pandey, J)